Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-10-01

q debt 80 well secured aud when there ex-
;sted nj necessity for its collection. and
when he was not required To pay 1t with
auy other money than that called Tor IN the
! contract. sayors not only Of fraud, J an
! Injustice to the heirs Of the estate, aud
should be disrsgarded." Authorities on
this point are duly cited in the opinion.
| The Court refers to the action OF the Su-
preme Court in the case of Glasgow vs.
Lipse. in 117th United States, and takes
! the stand that the decision OF the Court In
that case has no application, as the causes
| were very different. These differences
| Judge Jackson points out. Proceeding, he
says:
not recover on account OF his laches IN
prosecuting this case. We do not concur
IN this defense. The record discloses the
fact that the personal representatives nave
never made a settlement OF the estate; thai
they moved out of the State, and carried
with them all papers relating to their ad-
ministration; that the plaintiff came out
of the war financially ruined, and was I'M
able tn institute an action for the want OF
means. that the deed of release to Castle
man was not placed on record until near
the close of the year 1871. The action,
however was commenced in the spring OF
1891 and if the notes had been sued upon
at law. th~estatute of limitation would not
have barreda recovery of them. Courts OF
equity usually follow the rule of law in
tha anplication of the statutes. But this
oct;on ia tn enforce the deed of trust given
IN secure the payments of the purchase
money. The release was placed on the
record ONLY ten years before the suit was
commenced. 1t is sufficient to meet this
position that a deed Of trust can be enforced
within twenty years after the maturity
of the debts secured by it. All the notes
secured are within the time save one, and
the period deducted from the operation OF
the statute during the war saves it.
"But one more position OF the defense
remains. that We think necessary TO no.
tice. and that is, that under the circum-
stances were not the fiduciaries justified IN
this action. OF course every case Is gov
erned more or less by it's surroundings, but
in this case no one OF the reasons assigned
exist. as we have before shown.
1--WE are of opinion that not only is the
| plalntlu as u mutttl VI StiiSe NS" So
entitled to the relief sought, but that 1t is
simple Justice.
1.-The heirs of Castleman enjoy a landed
estate of great value, which was purchased
TO be paid for in the lawful money OF the
United States, and the heirs OF Opie who
are suing in this case have never received
the consideration promised under the con
tract of 1856. We take no notice OF the
fact thai the money received by the execu-
tors, as payment offthe debts due, had
some value, for the reason that We hold the
payment, rs far rs the parties to this action
are concerned, was illegal and VOID, ana
any relief the heirs of Castleman may
have, if, in fact, they have any, Is against
the executor"
A decree will he prepared in conformity
with the views of the Court as expressed IN
the opinion, referring the cause to a com
missioner to ascertain the interests OF the
plaintiffs and the two heirs OF John .Opie
and Mrs. Mead in the debt secured by the
deed of trust upon the land sold by their
ancestor, and TO ascertain any other liens
upon said lands.
The attorneys in the cause were Col.
Robert White for the plaintiff and Mar
shall Mccormick and X. I. Barton, OF
Virginia, for the defendants.